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Pollution and the Role of the Courts

in Remedying Pollution Problems

Hon. Justice Maneewon PhromnoiThe Supreme Administrative Court of Thailand

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Outline

I. Administrative Court and Environmental Cases

II. Environmental Law and Pollution Problems

III. Role of the Administrative Court in Remedying Pollution Problems

- Introduction

- Passive Role

- Active Role

IV. Conclusions

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I. Administrative Court and Environmental Cases

The Establishment of the Environmental Division:

Court of First Instance: July 5th, 2011

Supreme Admin. Court: Aug 2nd 2011

I. Administrative Court and Environmental Cases

Distinctions:

1. Distinctive Procedure :

Previous

Present

2. Panels and Presiding Judges :

Possess Special Expertise in Environmental Law

PlaintPresident of the Court

Admin. Panel

Envi. Plaint Envi. Panel

Chief of Division

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Envi. Panel

PlaintPresident of the Court

Admin. Panel

Envi. Panel

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II. Environmental Law and Pollution Problems

1. The Constitution of Thailand 2007

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II. Environmental Law and Pollution Problems

2. The Enhancement and Conservation of National Environment Quality Act, 1992 (NEQA)

- Fundamental law on environmental protection

- Establishment of National Environment Board

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III. Role of the Administrative Court in Remedying Pollution Problems

3.1 Introduction

Administrative

Court

State Agencie

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NGOsLocal

Communities

Businesses

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III. Role of the Administrative Court in Remedying Pollution Problems

3.2 Passive Role

3.2.1 Role of the Court in Enforcing General Principles of Environmental Law

(1) Prevention Principle

(2) Polluter Pays Principle

(3) Public Participation Principle

(4) Sustainable Development Principle

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III. Role of the Administrative Court in Remedying Pollution Problems

(1) Prevention Principle

Map Ta Phut Case

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III. Role of the Administrative Court in Remedying Pollution Problems

(2) Polluter Pays Principle (PPP)

Klity Creek Case

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III. Role of the Administrative Court in Remedying Pollution Problems

(3) Public Participation Principle

Klity Creek Case

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III. Role of the Administrative Court in Remedying Pollution Problems

(4) Sustainable Development Principle

Breeding Zone Case

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III. Role of the Administrative Court in Remedying Pollution Problems

3.2 Passive Role

3.2.2 Role of the Court in Interpreting and Applying Laws to Remedy Pollution Problems

(1) The Reservation for Determination of Damages

(2) The Assignment of Punitive Damages

(3) The Issuance of Environmental Rehabilitation and Restoration Order

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III. Role of the Administrative Court in Remedying Pollution Problems

(1) The Reservation for Determination of Damages

Section 444 of Civil and Commercial Code

“At the time of giving judgment it is impossible to ascertain the actual consequences of the injury, the Court may reserve in the judgment the right to revise such judgment for a period not exceeding two years”

Cobalt-60 Case

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III. Role of the Administrative Court in Remedying Pollution Problems

(2) The Assignment of Punitive Damages

“the Defendants’ emission of untreated smoke containing large amounts of sulphur dioxide into the neighboring atmosphere injured the plaintiffs, and is deemed outrageous behavior, therefore, punitive damages were awarded to encourage more careful behavior in future actions.”

Mae Moh Case

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III. Role of the Administrative Court in Remedying Pollution Problems

(3) The Issuance of Environment Rehabilitation and Restoration Order

“the Defendants shall set up measures and plans to effectively examine samples of soil, vegetation, or marine animals from Klity creek as well as analyze water, every season for a period of one year, until the level of lead contamination in such samples remains within acceptable limits. Further, that they were to notify the Plaintiffs of such measures and plans by open and accessible means.”

Klity Creek Case

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III. Role of the Administrative Court in Remedying Pollution Problems

3.3 Active Role

3.3.1 Establishment of Academic Affairs Committee on Environmental Law

3.3.2 Success and Role of Academic Affairs Committee on Environmental Law in Remedying Pollution Problems

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IV. CONCLUSION